Simon's Megalomaniacal Legal Resources

Mental Health - Consent and Capacity Board (CCB) (2)

. Naus v. Kennedy

In Naus v. Kennedy (Ont CA, 2025) the Ontario Court of Appeal considered a (second) appeal, this from "an order of the Superior Court of Justice confirming a decision of the Consent and Capacity Board (the “Board”) that he is incapable of consenting to treatment and that he should be subject to a community treatment order requiring him to take antipsychotic medication".

Here the court notes a common situation with treatment appeals in this field, that of the issue becoming moot due the lifting of, or changes in, the impugned treatment regime or capacity assessment:

[31] The finding of incapacity is moot because Mr. Naus is no longer being treated with antipsychotic medication and a new finding of incapacity specific to new treatment would have to be made before Mr. Naus can be treated again without his consent. As this court explained in Kozoubenko v. Gosk, 2023 ONCA 802, at para. 22, “a person’s capacity to consent to treatment is time and treatment specific. The [Health Care Consent Act] provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15.” Accordingly, Mr. Naus is now presumed capable, and “whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended”: Kozoubenko, at para. 22.